The DOJ just filed its letter to the 5th Circuit Court of Appeals affirming the authority of federal courts to rule on the constitutionality of congressional laws. The letter was signed by Eric Holder, and says in pertinent part:

The longstanding, historical position ofthe United States regarding judicial review of the constitutionality of federal legi slation has not changed and was accurately stated by counsel for the govenm1ent at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation….

The President’s remarks were fully consistent with the principles described herein.

“The 5th Circuit is one of the most respected in the U.S., and has a very distinguished history.”

If you say so.

I think the judges have embarrassed themselves and brought disrepute on their tribunal in the eyes of more competent and balanced jurists on both sides of the aisle. It was a petulant and reactionary request. Judges are supposed to be cooler than that.

Any response at all from the arrogant surprises me a little, but considering the context of the response, not much. orignally I’d wondered whether the 5th Circuits question was rhetorical designed to let the addressee’s stew in their cowardice of silence. As it turns out (I’ve got to re-read it slowly again) it appers to have accomplished some of that concept due to the dodging and dancing in the letter from Holder. Dang … he’d make a good candidate for “Dancing with the Stars.”

Maybe I am reading the document wrong, but Mr Holder appears to be suggesting that the courts deciding that the Anti-Injunction Act does not bar the plaintiff’s case is what Mr President was talking about…

Which would be odd, since the government had long-since given up that argument, and didn’t even bother to brief it.

I guess I must recall incorrectly… I remember the DOJ being better at lying than it is under this administration…

I’m not a lawyer, nor do I play one on TV, but this seemed very sassy. Points number 2 and 3 were downright rude… Is it common practice to begin to lecture the court in this way?

These were the directions from the Judge:

“I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.”

Can someone quote me what exactly Obama said that would suggest SCOTUS doesn’t have the power to declare federal legislation unconstitutional? I know he said “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” and that was clearly inaccurate, as the Supreme Court overturned the Gun-Free School Zones Act of 1990, which passed with greater majorities in both the House and the Senate than PPACA. However, nothing in that quote suggests they don’t have the power to do so, only (incorrectly) that they haven’t done so in this instance. Am I missing something?

The language is: “…what would be an unprecedented and extraordinary step …” “Unprecedented”: never done before; without any prior event or legal decision authorizing it. “Extraordinary”: out of the ordinary, beyond the course or scope of the everyday event. Hope that helps.

I’ve heard Obama’s claim that overturning economic legislation is what he was referring to, but that seems like a post-hoc explanation to me, because that’s not the context in which he made the statement.

Unprecedented means without precedent. Considering that the entire legal framework by which the courts operate is based on precedent Obama’s choice of language can’t be overlooked. You’re right, he didn’t say the court couldn’t do it. He said it would be unprecedented which is clearly false. The point is that he was trying to make hay by politicizing the court and its decisions by positioning them as something that’s never been done before because it’s so extreme. It’s not extreme. It’s quite precedented.

Not a bad letter —-considering it was surely assigned to the lowest paid intern in the DOJ offices.

Remember this moment that may have triggered a genuine Constitutional Crisis in the land when the Supreme Court announces their decision in a month or two.

A colleague told me today she “clicker polled” her 5 freshman English classes today on three Supreme Court questions…….How many judges sit on the Supreme Court?……Can the Supreme Court overturn a law passed by Congress and signed by any sitting President of the US……and Who should have more power in the three divided branches of our US Federal governing structure- the Supreme Court/Judiciary, the Executive Branch (the sitting President) or the Congress (representatives in the Senate and House of Representatives in the Congress).

This small sampling from one professor would make any knowledgeable citizen weep.

The money quote in the DOJ letter is in this quoted language: “‘This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is
within their delegated power or is necessary and proper to execution of that power.’ Five Gambling Devices Labeled in Part .. Mills, and Bearing Serial Nos. 593-22i, 346 U.S. at 449.'” (citation punctuation corrected). Here’s the punch line: “… a deference due to deliberate judgement by …the two Houses of Congress…” Not only was the bill amended at literally the eleventh hour prior to the House vote, none of those who voted for it bothered to read it and admitted that fact. The deference arises from the concept that a deliberate legislative act is entitled to be upheld when it is a close call. What deference is due to this law, given the legislative and parliamentary manipulation which accompanied its passage? Get real here: if you did not read it, how can you have voted for it with your Constitutional duty to support and defend the Constitution one of your considerations? Not possible; therefore, no deference is due to this act of Congress.

I have prevously expressed my desire that Pelosi’s “We have to pass the bill before we can see what’s in it” might somehow play a role in this decision, even if it’s merely the role of silent influence and is never referred to.

I’m unclear how saying “The President’s remarks were fully consistent with the principles described herein” complies with Judge Smith’s request for a letter. Granted, the Attorney General’s letter specifically addressed the legal principles of judicial review, but it did not address those principles “specifically and in detail in reference to [President Obama’s] statements” as Judge Smith requested:

“I’m referring to statements by the President in the past few days, to the effect and I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress that have enjoyed — he was referring, of course, to ObamaCare — to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review, and that’s not a small matter. So I want to be sure that you’re telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
***
I would like to have from you by Noon on Thursday, that is about 48 hours from now, a letter stating what is the position of the Attorney General and the DOJ in regard to the recent statements by the President, stating specifically and in detail in reference to those statements, of what the authority is of the federal courts in this regard in terms of judicial review.“

I’m not a law expert but I did sleep at a Holiday Inn last night… It seems IMHO that Holder merely refers to cases where the Supreme Court deferred to the authority of lower courts, which is irrelevant because the Supreme Court has already decided not to bypass judicial review of Obamacare.

And in another reference Holder cites, its decided that states have a Tenth Amendment right, allowing state legislatures greater leeway in crafting reasonable regulations or whether Federal mandates are deemed unconstitutional.

Again bolstering the argument about federal power at a time when the public’s approval of Congress is at a historic low it seems absurd to refer to appropriateness of reliance on political branches policy choices and judgements, especially so when questions of constitutionality arise.

The reference to the dairy farmers case, its hilarious! I’ll be waiting with glee to see the Government promoting “Got Slut?” in an effort to equalize prices within the contraceptives industry.

Lastly, his reference to the nullification of the legislatures work and to “a ruling of unconstitutionality frustrates the intent of elected representatives of the people” Holder admits its our right to strike down or repeal the law by act of congress, but shows a massive disconnect from the issue before the Supreme Court that the the practical concept of freedom is the independence of our will from coercion by judgement of the Federal Government.

I believe David Bernstein at Volokh has it about right when he asserts:

Putting aside what one thinks of the ACA, why exactly should the courts strongly defer to implicit constitutional conclusions by Congress when, in fact, there was not only no deliberation on the issues, but when leading supporters of the legislation explicitly denied they thought the Constitution mattered? (A law, I should not, could of course still be upheld even if the courts don’t give a strong presumption of constitutionality to it).

Now add this from The W Post and maybe understand why I dont take Holder’s letter or what Obama has said as sincere:

And Wednesday, the administration was in court in Boston explaining why it thinks the Defense of Marriage Act is unconstitutional, although it was passed by bipartisan majorities and signed by a Democratic president.

^^agree. Its all about the narrative.
The basic logic fault is assuming because some legislation has passed SCOTUS review, some of which happens to be “social legislation” the conclusion therefore must be defference to Congress in these matters.
Like demanding the sun rise in the East and assuming because it does, it must be proof of the validity/strength of the demand.

It would appear Mr. Holder shares some of his boss’s egotistical traits. I don’t recall the Judge asking for a letter from the Attorney General, but from the DOJ. Wouldn’t that mean that the U.S. Attorney from the district where the case originated would sign the letter? Also, note the use of “I”. I was trained to always use “we” in all letters to courts or counsel. If I ever do have to refer to myself, I use “the undersigned”.

[…] On Tuesday Judge Jerry Smith, incensed over President Obama’s stated hope that the Supreme Court wouldn’t overturn his central domestic achievement, gave the Justice Department a homework assignment. And he was very clear about that assignment. He wanted to know if Obama supports the concept of judicial review, and he wanted the president’s position explained in “at least three pages single spaced, no less.” Well, the letter is out. Here it is: […]